The U.S. Court of Appeals for the Second Circuit Nov. 24 upheld the admission of statements elicited overseas by U.S. agents from suspects in the custody of a country that does not provide a right to counsel during interrogations. “[I]nsofar as Miranda might apply to interrogations conducted overseas, that decision is satisfied when a U.S. agent informs a foreign detainee of his rights under the U.S. Constitution when questioned overseas,” the court said (In re Terrorist Bombings of U.S. Embassies (Fifth Amendment Challenges), 2d Cir., No. 01-1535-cr(L), 11/24/08).

No Right to Appointed Counsel.

The defendants in this case were convicted of participating in al Qaeda's bombings of U.S. embassies in East Africa. The proof at trial included evidence of statements they made while in the custody of Kenyan officials during interrogations by agents of the U.S. Joint Terrorism Task Force.

The agents had concluded that appointed counsel was not available to indigent suspects in Kenya, so the agents gave the defendants versions of the Miranda warnings that advised them that they would have a right to counsel during any questioning in the United States. They also presented the defendants with the Advice of Rights form often used by U.S. officials conducting interrogations overseas. With respect to the presence and appointment of counsel, the AOR form states:

In the United States, you would have the right to talk to a lawyer to get advice before we ask you any questions and you could have a lawyer with you during questioning. In the United States, if you could not afford a lawyer, one would be appointed for you, if you wish, before any questioning.

Because we are not in the United States, we cannot ensure that you will have a lawyer appointed for you before any questioning.

If you decide to speak with us now, without a lawyer present, you will still have the right to stop answering questions at any time.

A federal district court later ruled that the rights advisories initially given to the defendants were misleading in that they may have given the impression that the right to counsel attached only in the United States and that the defendants did not have the right to consult with counsel they retained privately. Accordingly, the court suppressed statements elicited from the defendants up until they were later given rights advisories that cleared up any possible misunderstanding regarding their attachment of the right to counsel. The defendants, however, appealed the district court's decision to allow the admission of later statements elicited from them in Kenya.

AOR Was Good Enough.

In an opinion by Judge José A. Cabranes, the Second Circuit observed that the citizenship status of suspects and the location of interrogations are not relevant to the applicability of Fifth Amendment protections because that provision regulates the admissibility in U.S. courts, not the way interrogations are to be conducted. “Accordingly, we hold that foreign nationals interrogated overseas but tried in the civilian courts of the United States are protected by the Fifth Amendment's self-incrimination clause,” the court said.